Kerala High Court
Ouseph John vs M.J.Jose on 11 September, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934
RSA.NO. 650 OF 2004 ( )
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AS.51/2001 OF SUB COURT, THIRUVALLA
OS.747/1995 OF MUNSIFF'S COURT, THIRUVALLA
APPELLANTS/APPELLANTS/PLAINTIFFS:
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1. OUSEPH JOHN,
RESIDING AT MUKKATHODU PURAYIDATHIL, VAIPUR MURI
ANICKADU VILLAGE, MALLAPPALLY TALUK.
2. AMMUKUTTY JOHN OF -DO- -DO-.
BY ADV. SRI.T.I.ABDUL SALAM
RESPONDENTS/RESPONDENTS/DEFENDANTS:
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1. M.J.JOSE,
PUNNAVELIL, MUKKETHODU VEEDU, ANICKADU VILLAGE
MALLAPPALLY TALUK.
2. M.J.BABY,
CHIRAPPURATHU VEEDU, THEKKUMKAL P.O.
AYROOR VILLAGE.
3. ANIYAMMA JOSEPH,
MUNDAMKUDUPPAYIL VEEDU, PADIMON P.O.
KOTTANGAL VILLAGE.
4. ANNAMMA CHACKO,
CHUZHIKUNNEL PUTHEN VEEDU, NOOROMMAVU P.O.
ANICKADU VILLAGE.
R.S.A. No.650 of 2004
5. KUKNJAMMA THOMAS,
KOLIRAYATHU VEEDU, CHALAPPALLY POST
EZHUMATTOOR VILLAGE.
6. SALI JOSEPH,
MUKKENTHODU VEEDU, PUNNAVELIL P.O., VAIPUR MURI
ANICADU VILLAGE.
BY ADV. SRI.THOMAS NINAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
11.09.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No.650 of 2004
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Dated this the 11th day of September, 2012
J U D G M E N T
This Second Appeal arises from the judgment and decree of learned Sub Judge, Thiruvalla in A.S. No.51 of 2001 which in turn arose from the judgment and decree of learned Munsiff, Thiruvalla in O.S. No.747 of 1995.
2. The appellants/plaintiffs, husband and wife sued the respondents/defendants for partition of 20 cents described in the plaint schedule. According to the appellants, as per Ext.A1, compromise decree in A.S. No.128 of 1981, the suit property was acquired by the appellants and the parents of the 1st appellant. Hence the appellants are entitled to half share in the said property. On the death of the parents, their half share devolved on the 1st appellant, respondents and the deceased brother of the 1st appellant. The 1st appellant acquired the undivided shares of respondents 3 to 6 as per Ext.A2 and the share of the deceased brother from his legal representatives as per Ext.A3. Hence the appellants claimed that the 1st appellant has 5/8 shares in the half share of the parents.
R.S.A. No.650 of 2004 -: 2 :-
3. The trial court found that since Exts.A2 and A3 are not registered, those documents cannot affect title of respondents 3 to 6 and the legal representatives of the deceased brother of the 1st appellant. It was found that the 1st appellant has only 1/8 share in the suit property. Accordingly, a preliminary decree was passed. That is confirmed by the first appellate court. Hence the second appeal.
4. The following substantial questions of law are framed for a decision:
(i) Did not the lower appellate court act illegally in dismissing I.A. No.548/2002, the application under Order 41, Rule 27 of the Code of Civil Procedure (for short, "the Code")?
(ii) When subsequent to the judgment of the trial court, the plaintiffs have obtained the rights of defendants 3 to 6 as per registered assignment deed are not the plaintiffs entitled to get their shares fixed taking into consideration the said assignment deed also?
(iii) Did not the trial court act illegally in not R.S.A. No.650 of 2004 -: 3 :- considering the plea of plaintiffs that as per the terms of Ext.A1, plaintiffs are entitled to = share in the plaint schedule property?
5. So far as the right of the 2nd appellant is concerned the trial and first appellate courts found that it is only under the 1st appellant and her husband. The learned counsel has placed reliance on Ext.A1, compromise decree in O.S. No.128 of 1981.
6. I have gone through Ext.A1. But I am unable to find that any title over the property has been conferred on the 2nd appellant as per the compromise decree. There is no case for the appellants that otherwise than under Ext.A1, the 2nd appellant has any right over the property. In the nature of the compromise entered as per Ext.A1, the contention that the 2nd appellant has right over the property cannot be accepted.
7. Then the question is whether the 1st appellant has acquired undivided share of respondents 3 to 6 and of the legal heirs of his deceased brother as per Exts.A2 and A3, respectively?
8. So far as that claim is concerned, courts below found, R.S.A. No.650 of 2004 -: 4 :- rightly too, that since Exts.A2 and A3 are unregistered documents and the value of the property is more than Rs.100/-, those documents cannot affect the right, title and interest of respondents 3 to 6 and the legal heirs of the deceased brother of the 1st appellant in the property. Hence by virtue of Exts.A2 and A3 the 1st appellant cannot lay hands on the undivided shares of respondents 3 to 6 and the legal heirs of his deceased brother.
9. It is seen that in the first appellate court, appellants filed I.A. No.548 of 2002 under Rule 21 of Order XLI of the Code requesting to admit in evidence assignment deed Nos.58 of 2000 and 1264 of 2000. According to the appellants, 1st appellant has acquired the undivided shares of respondents 3 to 6 as per document No.58 of 2000 and of the legal heirs of his deceased brother, as per document No.1264 of 2000. The first appellate court dismissed I.A. No.548 of 2002.
10. If the 1st appellant has acquired the undivided shares of respondents 3 to 6 and the legal heirs of his deceased brother, certainly there will be difference in the shares to be allotted to the 1st appellant. Having regard to that aspect I am inclined to think that the said documents require consideration.
11. In the light of the above discussion it follows that R.S.A. No.650 of 2004 -: 5 :- the claim made by the appellants over one half share in the suit property as per Ext.A1 cannot be accepted. The courts below have rightly found against that claim. However, the claim of the 1st appellant that he has acquired the undivided shares of respondents 3 to 6 and the legal heirs of his deceased brother as per document Nos.58 and 1264 of 2000 requires consideration by the trial court.
12. The substantial questions of law framed are answered accordingly.
The Second Appeal is allowed in part and the judgment and decree of the courts below are set aside as under:
(i) The finding of the trial court as confirmed by the first appellate court that the appellants have not acquired half right over the suit property as per Ext.A1 is confirmed.
(ii) The finding of the courts below that the 1st appellant has not acquired the undivided shares R.S.A. No.650 of 2004 -: 6 :- of respondents 3 to 6 and the legal heirs of his deceased brother is set aside.
(iii) O.S. No.747 of 1995 is remanded to the learned Munsiff, Thiruvalla for consideration of the question whether the 1st appellant has acquired the undivided shares of respondents 3 to 6 and the legal heirs of his deceased brother as per document Nos.58 and 1264 of 2000 (after giving opportunity to both sides to adduce further evidence).
(iv) The Registry shall transmit the records in the case including the documents produced in the first appellate court as per I.A. No.548 of 2002 to the trial court.
(v) Parties shall appear in the trial court on 03.10.2012.
(vi) In case any of the parties do not appear, the trial court shall issue summons to such party. R.S.A. No.650 of 2004 -: 7 :-
(vii) The trial court is directed to dispose of the suit as early as possible.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
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